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Adults with Incapacity (Scotland) Act 2000
Would you like to arrange for your affairs to be properly managed in the future, if your mental capacity should deteriorate?
Are you a relative or carer of a person aged 16 or over who is unable to take decisions on important matters for themselves?
Do you know someone in that position, for example a neighbour or friend?
Are you a voluntary or statutory worker dealing with adults who have lost the capacity to take some decisions, or who never had it?
This leaflet gives information on an important piece of new legislation that came into force on 2 April 2001.
Please read it. This legislation may be relevant to you.
The Act generally
The Act changes the system for safeguarding the welfare, and managing the finances and property, of adults (aged 16 or over) who lack the capacity to take some or all decisions for themselves because of mental disorder or inability to communicate by any means. It allows other people to make decisions on behalf of these adults, subject to safeguards.
All decisions made on behalf of an adult with impaired capacity must:
- benefit the adult
- take account of the adult's past and present wishes
- restrict the adult's freedom as little as possible while still achieving the desired benefit
- encourage the adult to use existing skills or develop new skills
- take account of the views of others with an interest in the adult's welfare.
Under the Act a number of different agencies are involved in supervising those who take decisions on behalf of the adult.
- the Public Guardian has a supervisory role and keeps registers of attorneys, people who can access an adult's funds, guardians and intervention orders
- local authorities look after the welfare of adults who lack capacity
- the Mental Welfare Commission protects the interests of adults who lack capacity as a result of mental disorder
Under the Act, the main ways that other people can make decisions for an adult with impaired capacity are:
Power of Attorney
Individuals can arrange for their welfare to be safeguarded and their affairs to be properly managed in future, should their capacity deteriorate. They can do this by giving another person (who could be a relative, carer, professional person or trusted friend) power of attorney to look after some or all of their property and financial affairs and/or to make specified decisions about their personal welfare, including medical treatment.
All continuing and welfare powers of attorney granted from 2 April 2001 will need to be registered with the Public Guardian to be effective.
Access to the adult's funds
Individuals (normally relatives or carers) can apply to the Public Guardian to gain access to the funds of an adult incapable of managing those funds. This applies to funds held in, for example, a bank or building society account in the sole name of the adult.
The Act also includes provisions to allow access to a joint account to continue where one account holder has become incapable of managing the funds.
Funds of residents in care establishments
Authorised care establishments can manage a limited amount of the funds and property of residents who are unable to do this themselves.
Medical treatment and research
The Act allows treatment to be given to safeguard or promote the physical or mental health of an adult who is unable to consent. Special provisions apply where others such as attorneys have been appointed under the Act with powers relating to medical treatment.
Where there is disagreement a second medical opinion can be sought. Cases can also be referred to the Court of Session in certain circumstances. The Act also permits research involving an adult incapable of giving consent but only under strict guidelines.
Intervention and guardianship orders
Individuals can apply to their local Sheriff Court for:
- an intervention order where a one-off decision or short-term help is required (for example selling property or signing a document)
- a guardianship order, which may be more appropriate where the continuous management of affairs or the safeguarding of welfare is required.
Local authorities or any person claiming an interest in the adult's affairs may make applications for intervention and guardianship orders.
Codes of practice and regulations
The codes of practice are for those people and organisations that have functions given to them by the Act. The codes will provide guidance on the legislation itself and offer further practical information.
Copies available at the following address:Civil Law Division
Floor 2 West (Rear)
St Andrew's House
Tel: 0131 244 2193 or website: www.scotland.gov.uk/justice/incapacity
Where can I get further information?
www.scotland.gov.uk/justice/incapacity / or you may wish to contact
The Office of the Public GuardianHadrian House
Callander Business Park
Tel: 01324 678300
The Social Work Service of your local authority
- see local telephone directory for address
The Mental Welfare Commission for ScotlandArgyle House
3 Lady Lawson Street
Tel: 0131 222 6111
Citizens Advice Bureaux
- see local telephone directory for address
The Law Society of Scotland26 Drumsheugh Gardens
Tel: 0131 226 7411
7 Buchanan Street
Tel 0141 226 4541
ASCS - Advice Service Capability Scotland11 Ellersly Road
Tel 0131 313 5510
Textphone/Minicom 0131 346 2529
Alzheimer Scotland - Action on Dementia22 Drumsheugh Gardens
Tel 0131 243 1453
Freephone 0808 808 3000
Age Concern Scotland160 Causewayside
Freecall Helpline 0800 00 99 66
This leaflet is available, free of charge, also in Braille, audio tape, large print format, Urdu, Punjabi, Bengali, Arabic, Chinese and Gaelic by phoning 0131 244 2193.